InUnited States v. BruguierandUnited States v. Rouillard, the defendants were convicted of “knowingly . . . engaging in a sexual act with another person if that other person is–(A) incapable of apprising the nature of the conduct; or (B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act.” The issue is whether the “knowingly” requirement extends to both (A) and (B)—in other words, must the defendant have known that the person was mentally or physically incapacitated?

The Bruguier panel, Judge Diana Murphy writing, said no: “[T]he ‘most natural grammatical reading’ of the statute suggests that ‘knowingly’ only modifies the surrounding verb, which in this case is the phrase ‘engages in a sexual act.'”

The Rouillard panel, Judge Shepherd writing, said yes: “Knowingly ‘engag[ing] in a sexual act with another person’ is not inherently criminal under federal law, barring some other attendant circumstance”—“we believe the statute is properly read as requiring defendant’s knowledge that the other person was incapacitated.”

Judge Shepherd and his colleagues relied primarily on the Supreme Court’s decisions inUnited States v. X-Citement Video, Inc.andFlores-Figueroa v. United States (which came out of the Eighth Circuit) for the proposition that a mens rea requirement presumptively applies to each element of a criminal statute. Judge Murphy believed that the presumption was rebutted here:

[T]he Court noted in X-Citement Video that the common law mens rea presumption “expressly excepted ‘sex offenses, such as rape, in which the victim’s actual age was determinative despite defendant’s reasonable belief that the girl had reached age of consent.'” 513 U.S. at 72 n.2 (citing Morissette v. United States, 342 U.S. 246, 251 n.8 (1952)). That makes sense because in such a context the “perpetrator confronts the underage victim personally and may reasonably be required to ascertain that victim’s age.” Id. Similarly, where an individual has sex with someone physically incapable of consent as here, he “confronts the . . . victim personally” and it is reasonable to require him to ensure that consent has been given.”

The two panels also saw the legislative history differently. The Rouillard panel saw “a lack of direction from Congress,” and thought it significant that “no mention” was made in the House Judiciary Report “of any intent to make section 2242(2) a strict liability crime.” But the Bruguier panel thought that the legislative history supported its reading of the statute:

In drafting § 2242(2), Congress elected not to make lack of consent an element of the offense or to require the prosecution to introduce any evidence regarding whether the victim consented. H.Rep. No. 99-594, at 16 (1986). Congress reasonably decided that the best way to prevent sexual assault on persons who are mentally or physically unable to resist was to put the obligation on the instigator of the sexual act to confirm the other’s ability to consent. This was a practical resolution given the type of acts and circumstances which § 2242(2) is regulating. Sexual encounters where one partner is even arguably unable to consent to the activity represent conduct that a “reasonable person should know is subject to stringent public regulation.” United States v. Collins, 949 F.2d1029, 1031 (8th Cir. 1991).